Majeed v. State of Kerala — 1996 DIGILAW 488 (KER)

Judgment :- K.A. Mohammed Shafi, J. The plaintiff/petitioner in I. A. No. 2486/94 in O.S. No. 306/87 on the file of the Sub Court, Trivandrum is the revision petitioner. The suit was filed by the revision petitioner for settlement of accounts with regard to the alleged illegal termination of the contract between the petitioner and the first respondent and for declaration that the termination of the contract at the risk and cost of the petitioner is not legal and proper and for allied reliefs during the pendency of the suit. The petitioner took out an advocate commission to estimate the actual amount due and claimed by the petitioner with the help of an expert commissioner who is a retired Superintending Engineer of the Public Works Department and according to him, the Commissioners filed their detailed accounts. After the commission filed their accounts, the petitioner sought to amend the plaint by filing the above LA. claiming specified amounts under various accounts amounting to Rs. 3,11,130/- offering to pay court fee on that amount, by substituting relief No. (a) and making certain other suitable amendments in other parts of the plaint. Respondents vehemently opposed the amendment of the plaint sought for by the revision petitioner and the court accepting those contentions dismissed the petition by the order dated. 29.6.1994. That order is assailed in this revision petition. 2. The revision petitioner has contended that he has clearly stated in paragraph. 27 of the plaint that the actual specific sum due to him was not ascertainable since amounts are due to him from the defendants and the defendants are entitled to claim adjustment of monies due from him on various counts including the value of materials received by him from the departmental stores during the course of the execution of the contract and therefore, he valued the suit under S.35 of the Kerala Court Fees and Suit Valuation Act, tentatively at Rs. 30,000/- stating that he is ready and willing to pay additional Court fee, if any, necessary. According to him, since the amount claimed by him are quantified in the commission report he is entitled to claim the amount on various heads by paying the requisite court fee and therefore, he sought amendment of prayer (a) and other parts of the plaint. 3. According to him, since the amount claimed by him are quantified in the commission report he is entitled to claim the amount on various heads by paying the requisite court fee and therefore, he sought amendment of prayer (a) and other parts of the plaint. 3. The reliefs (a) and (b) claimed by the revision petitioner in the plaint areas follows: a) directing a full and complete enquiry into the losses and damages suffered by the plaintiff on account of the acts of omission and commission on the part of the defendants in connection with the implementation and performance of agreement No. 12/sesc/84-85 dated. 20.6.84 and for a full settlement of accounts of all claims arising in favour of the plaintiff out of the said agreement including payment under final bill, value of work done, interest on delayed payments, idling wages, prevented gains, refund of security, retention for the reasons set forth herein. b) for a declaration that the termination of contract agreement No. 12/sesc/84-85 dated 20.8.84 alleged lobe at the risk and cost of the plaintiff pursuant to proceedings order No. BSC-2278/86/D2 dated. 19.6.1987 of the Superintending Engineer, Buildings and Local Works, South Circle, Trivandrum is not legal and proper and that the plaintiff is relieved off from all contractual obligations and that the plaintiff is exonerated from the responsibility of executing the balance works. In the above application for amendment of the plaint filed under O.VI R.17 of CP C the revision petitioner seeks to delete the prayer (a) and substitute the following: "The plaintiff may be allowed to recover from the defendants and their assets Rs. 18,000/ - as idling wages for watchers for a period of one year; Rs. 5,000/- as payment for preliminary and enabling works, Rs. 70,090/- as payment for works done but not included in measurement books; Rs. 48,000/-as payment by way of interest for blocked capital; Rs. 1,00,000/- as payment by way of prevented gains, Rs. 20,000/- as payment for loss of bricks, and Rs. 50,040/- as security deposit and interest accrued thereon". 4. 5,000/- as payment for preliminary and enabling works, Rs. 70,090/- as payment for works done but not included in measurement books; Rs. 48,000/-as payment by way of interest for blocked capital; Rs. 1,00,000/- as payment by way of prevented gains, Rs. 20,000/- as payment for loss of bricks, and Rs. 50,040/- as security deposit and interest accrued thereon". 4. The contention of the respondents that the revision petitioner cannot be allowed to amend the suit filed by him for settlement of accounts to one for recovery of money and such amendment will change the nature and character of the suit and work injustice to the respondents relying upon the decision reported in Retnakaran v. Venganoor Panchayat (1988 (2) KLT 864) is accepted by lower Court and the contention of the revision petitioner that the above reported decision is applicable to only suits filed for settlement of accounts pure and simple and has no application to suits filed claiming relief of settlement of accounts, declaration etc. as in this case did not find favour with the lower court. 5. In the decision reported in Retnakaran v. Venganoor Panchayat (1988 (2) KLT 864) the learned Single judge of this Court held that suit for settlement of accounts cannot be permitted to be amended and converted into a suit for damages and vice versa and for that purpose relied upon the decision of the Division Bench of this Court reported in C.S. Nair v. Travancore Devaswom Board (1987 KLJ 838). It is clear from the observations made in the judgment reported in Retnakaran v. Venganoor Panchayat (1988 (2) KLT 864) that the suit involved in that reported case is a simple suit for settlement of accounts alone. It is clear from para. 2 of the judgment reported in C.S.Nair v. Travancore Devaswom Board (1987 KLJ 383) that the suit was filed for a decree for settlement of accounts and for realisation of the amount found due. In that reported judgment the Division Bench of this Court distinguished the decisions reported in The Kerala State Electricity Board v. Marshall Sons & Co. (India) Ltd., Madras (1985 KLJ 930) and CRP No. 1110/69. 6. In that reported judgment the Division Bench of this Court distinguished the decisions reported in The Kerala State Electricity Board v. Marshall Sons & Co. (India) Ltd., Madras (1985 KLJ 930) and CRP No. 1110/69. 6. Counsel for the revision petitioner vehemently argued that the decision reported in Retnakaran v. Venganoor Panchayat (1988 (2) KLT 864) relied upon by the respondents and the lower court for dismissal of the petition for amendment of the plaint does not hold the field in this case and the decision of the Division Bench of this Court dated. 13.10.1993 in CRP No. 591/91 is squarely applicable to trie facts of this case. In that decision, the Division Bench held that the suit involved in that case was not a suit for settlement of accounts alone since the plaintiff therein claimed certain amounts from defendants thereby partaking the character of a suit for recovery of money also and allowed the amendment of the plaint sought for by the plaintiff by deleting prayer (a) (ii) and substituting a prayer for recovery of a specific sum on several counts. 7. In the decision reported in Nanduri Yogananda Lakshminarasimhachari and Ors. v. Sri. agastheswaraswamivaru (AIR 1960 SC 622) the Supreme Court has observed as follows: "The question of amendment, in our opinion, was rightly decided by the High Court. As held by that Court all the necessary allegations had been made in the plaint and the requisite pleas had been raised by the appellants; an issue was framed on the question and the parties were fully cognizant of the points in controversy and the necessary evidence was led by the parties. In this view of the matter, the High Court was right in allowing the amendment by the addition of a prayer in the prayer clause". In the decision reported in A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation (AIR 1967 SC 96) the Supreme Court has observed as follows: "The amendment seeks to introduce a claim based on the same cause of action, that is, the same contract. It introduces no new case of facts. Indeed the facts on which the money claim sought to be added is based are not in dispute. Even the amount of the claim now sought to be made by amendment, was mentioned in the plaint in stating the valuation of the suit for the purpose of jurisdiction. It introduces no new case of facts. Indeed the facts on which the money claim sought to be added is based are not in dispute. Even the amount of the claim now sought to be made by amendment, was mentioned in the plaint in stating the valuation of the suit for the purpose of jurisdiction. The respondents had notice of it. It is quite clear that the interpretation of the clause was sought only for quantifying the money claim. In the written statement the respondent specifically expressed its willingness to pay the appellant's legitimate dues which could only mean such amount as might be due according to the rates applicable on a proper interpretation of the clause. The respondent was fully aware that the ultimate object of the appellant in filing the suit was to obtain the payment of that amount. It was equally aware that the amount had not been specifically claimed in the suit because the respondent had led the appellant to believe that it would pay whatever the court legitimately found to be due. It in fact, said so in the written statement. If there was any case, where the respondent was not entitled to the benefit of the law of limitation, the present is that one. The respondent cannot legitimately claim that the amendment will prejudicially affect his right under that law for really he had no such right. It is a case in which the claim for money was in substance in the plaint from the beginning though it had not formally been made". In the decision reported in Narayanan Nair v. Appu and Ors. (1972 KLT 406) this Court allowed the conversion of a suit for permanent injunction to restrain disbursement of compensation amount to the defendant into one for recovery of the amount since the amount was already disbursed to the defendant before temporary injunction was granted. In the decision reported in Narayanan Nair v. Appu and Ors. (1972 KLT 406) this Court allowed the conversion of a suit for permanent injunction to restrain disbursement of compensation amount to the defendant into one for recovery of the amount since the amount was already disbursed to the defendant before temporary injunction was granted. In the decision reported in Yamuna v. Bhavani (1987 (1) KLT 223) this court allowed amendment of the plaint by incorporating a new relief by claiming recovery of possession on title in a suit filed for redemption of mortgage by holding that a new relief can be claimed on the same set of facts in order to avoid multiplicity of suits and it is necessary for the purpose of determining the real question in controversy between the parties and no prejudice will be caused to the defendant by allowing the amendment of the plaint. In the decision reported in John v. Executive Officer (1992(1) KLT 562) this court allowed amendment of the plaint in a suit for injunction against the Panchayat granting licence after the plaintiff sent notice under S.123 of the Panchayat Act and waiting for statutory period on the Panchayat informed the Court that licence had already been issued before filing the suit and incorporating more prayers other than injunction. 8. From the above decisions, it is clear that when the parties are alive to the nature of dispute and no new plea is raised or the claim in substance is already in the plaint though not form ally made or if factual foundation is laid in the plaint and the amendment sought for is to bring in additional reliefs, or without any amendment of cause of action or pleading defect the amendment sought for is only to mould the reliefs on the very same plea and cause of action, amendment has to be allowed if no prejudice is to be caused to the opposite side. 9. The contention of the respondents that by the amendment sought for by the revision petitioner, the entire nature and character of the suit will be changed is not sustainable considering the averments made in the plaint and the reliefs claimed originally in the plaint and the amendment of prayer (a) in the plaint sought for by the petitioner in this case. It is clear from the reliefs sought originally in the plaint that it is not a suit for settlement of accounts, pure and simple as was the case in the decision reported in 1988 (2) KLT 864 and it is a suit for settlement of accounts as well as declaration that the termination of the contract is invalid. Therefore, the principles laid down in the decision reported in 1988 (2) KLT 864 has no application to the facts of this case and the principles laid down in the order dated 13.10.1993 in CRP No. 591/91 by a Division Bench of this Court is squarely applicable to the facts of this case. Therefore, the rejection of the application for amendment of the paint by the lower court in this case is not legal or sustainable. Hence. This revision petition is allowed. The impugned order is set aside and the amendment of the plaint sought for by the revision petitioner is allowed.